Question: “People who make mutual wills have almost never thought through all the implications. Not many people make them, but those who do are inviting litigation.” Discuss.

The minority of the society who make mutual wills are like the people who head to McDonald when they are hungry: all they are concerned with are their needs, and they never thought of the consequences. However, the fault is not entirely theirs. The hungry man, if advised by a sensible nutritionist, would probably eat something else to fill up his tummy. The man who wants to make mutual will, if he had received sensible advise, he would think twice before making mutual will, and if he actually decided to make mutual will, he would have made sure all issues are addressed properly and appropriately, to ensure no regrets.

Therefore, the statement in the question is only correct if the will draftman is negligent; if the will draftman fails to address all relevant issues, such as: possible future events, remarriage of the survivor, birth of children to the survivor, property intended to be bound by the agreement, and powers intended to be conferred on the survivor to dispose of such property during lifetime.

Sadly, in many cases we notice that, the fact that mutuals wills had failed to address relevant issues, coupled with uncertainty in this area of law, had to many who are involved in making mutual wills end up being involved in litigation.

Mutual will is the brainchild of equity. It is made pursuant to an agreement between two or more persons to dispose some or all of their property upon death and to execute wills pursuant to the agreement, with both parties agreeing that the survivor is to be bound by the agreement when the binding event occurs. Prima facie, this doctrine is harmless. It is the perfect doctrine for people who live in fairytale: where people fell in love at first sight and sees each other as life partner; where when people say “till death do us apart”, they actually meant what they said. For people like this, doctrine of mutual will is the perfect instrument for them to provide for their children upon their death. Since this doctrine is not limited to married couple, it is also the perfect instrument for friends or family members who trust each other so much that they want to provide for someone that both of them care about.

It is saddening to note that we live in an era where divorce rate never cease to increase. this renders the current doctrine of mutual will problematic. Doctrine of mutual will is now seen as the devil that makes people fall into the abyss of litigation.

To quote Lord Camden in Dufour v Pereira: “A mutual will is a revocable act. It may be revoked by joint consent clearly. By one only, if he gives notice, I can admit. But to affirm that the survivor (who has deluded his partner into this will upon the faith and persuasion that he would perform his part) may legally recall his contract, either secretly during the joint lives, or after at his pleasure, I cannot allow.”

From this quote we can see that the doctrine of mutual will is not a “cruel” doctrine where you can never free yourself from its clutches. You can revoke, as long as you give notice. The only problem is when one party died and the survivor who remarries now want to revoke the mutual will. It will be impossible for him to give notice to someone who is going to lie underground forever. In such a scenario, he would not be able to free himself from the clutches of mutual will. If he revokes, he will be guilty of fraud. As Carnwarth J suggested in Re Goodchild, had the wills been mutual, the floating trust which would have been created would not have been destroyed by remarriage of the second testator after the death of the first.

This would be a problem for the survivor who wants to remarry. His earlier decision of making a mutual will now looks like an act that invites litigation. The survivor will shout “unfair” and “unjust”. On the other hand, the beneficiary, presumably the child, especially an underage one, will be clapping hands. This is becase the survivor who refuses to carry out the agreement will become a trustee automatically. This constructive trust takes effect when the binding effect occurs. The case of Re Dale, which decided that the doctrine of mutual wills may apply even where the survivor receives no benefit under the will of the first party to die, implies that the binding event must be when the first party died leaving his mutual will unrevoked. This would mean that a beneficiary under the mutual wills, who survives the first but predeceases the second testator, does not lose his benefit by lapse. The purpose of doctrine of mutual will is preserved: the rights and interests of the beneficiary are protected.

Furthermore, where the doctrine of mutual wills applies, it has the merit of making the arrangement enforceable by any beneficiary under the constructive trust: a contract not to revoke is enforceable by the contracting parties and may only be enforced by a beneficiary if he can bring himself within the provisions of the Contracts (Rights of Third Parties) Act 1999, which applies to contracts entered into on or after May 11, 2000.

The survivor would say that the consequences are too harsh. This is because although technically speaking, a mutual will is revocable like any other will, and therefore the constructive trust imposed does not stop the survivor from revoking his mutual will; the practical effect os the constructive trust is that it frustrates the unconscionable revocation of a mutual will. In reality, this would mean that the survivor cannot revoke the mutual will, because every attempt to revoke is doomed to failure.

Pacts must be respected. The survivor had already expressed his will to be bound by such agreement. Even though the law of succession bestows upon a person freedom to deal with property, by making a mutual will, a person is trading this freedom for a security and guarantee that his children will get something from him, regardless of any possible future event. Furthermore, parents have the duty to provide for their children.

The survivor can mitigate the harshness of the law by determning which property will be bound by the constructive trust through construction of the agreement. The law did not make it a requirement that all properties, including after-acquired property, must be disposed through mutual will when a person decides to make a mutual will. The survivor is given the freedom to decide which property they want to dispose through mutual will. If this is done properly, the act of making a mutual will is not an act that invited litigation.

Furthermore, the act of making mutual will cannot be said as an act that invited litigation. This is because the burden of proof is high in establishing intention on the part of the survivor that he is to be bound by the terms of the mutual will. In Re Oldham, a case concerning identical wills executed on the same day, Astbury J had said that: “the fact that two wills were made in identical terms does not connote beyond that of so making it.” Similarly, in Re Cleaver, the court held that mere honourable engagement between parties is not sufficient to show mutual will. There must be clear and satisfactory evidence on balance of probabilities. In the Estate of Heys held that proof can be from a declaration in the will, or from irrebutable extrinsic evidence.

Following Healey v Brown, it cannot be said that this area of law holds harsh consequences for the survivor because the court was bound by Re Goodchild to confine any constructive trust imposed only to the proerty received by the second testator from the first testator, and could not impose any trust on the second testator’s own property. Thus, strictly speaking, the survivor’s freedom to deal with his property is not taken away from him.

Therefore, the doctrine of mutual will should not be condemned for being an act that invites liltigation just because of negligence of the will draftsman. It is the failure of the professionals to give good advice that cause people who make mutual wills rarely thought through all the implication. If it is properly recorded in the wills themselves provision for possible future events, such as remarriage of the survivor or birth of children to the survivor, to make mutual will will be quite a sensible thing to do, since it shows how responsible the parents are towards the children.